Analysis: A governor’s executive order doesn’t go very far in Texas

As Texas legislators began to speculate about whether and when they will be called into a special session for unfinished business, lawyers and others started looking for ways to avoid it. The simplest idea — an executive order — won't work.

It would simplify things for the governor of Texas if he could simply issue executive orders the way a president can.

It would allow Gov. Greg Abbott, if he chose, to simply order the Texas Education Agency, the Texas Higher Education Coordinating Board and the Texas Facilities Commission to change the restroom policies in public schools, colleges and state office buildings.

But in a state where the top executive office has constitutionally limited powers, bossing agencies around on policy is constrained.

To heck with the Texas House, the Texas Senate and their running squabbles over who should use which restroom, locker room or other facility in a public building.

To heck with the standoff that prompted Lt. Gov. Dan Patrick to keep agency-renewing “sunset safety net” legislation from reaching the floor of the Senate — forcing Abbott to consider a special session to clean up the mess.

To heck with the idea that the legislative branch can stick its thumb into the executive branch’s business.

Alas, it appears that Abbott can’t just pick up the phone and ask the people he’s appointed or the people they’ve hired to make those kinds of changes in state policy. What’s more, it appears that the state’s Education Code doesn’t give the State Board of Education or the education commissioner the power to make rules with or without the governor’s consent.

The short form: The Legislature couldn’t produce a new law during 140 days in Austin. And the governor can’t get it done — if he wants it done — without their help.

Abbott, as it turns out, has been remarkably stingy with executive orders, perhaps an attorney’s view of that particular tool’s value. He took office in January 2015 and in the two-plus years since then, he’s issued exactly one order, a little more than a year ago. It kept the Governor’s Commission for Women in business.

His predecessor, Rick Perry, issued 80 executive orders over 13-plus years, according to the Legislative Budget Board. His most famous order landed in 2007, when he tried to require girls in Texas to be vaccinated against the human papillomavirus, a common sexually transmitted virus and the principal cause of cervical cancer. The Legislature overruled him a few months later, but the issue lingered and figured into the early days of Perry’s first campaign for the presidency.

Talk of executive orders started, literally, as cocktail party chatter after the legislative session, a conversation between journalists and current and former Texas government staffers about Abbott’s options after the Legislature blew its deadline this week.

Lawmakers didn’t finish their work. Specifically, Patrick followed through on his threat to stall must-pass legislation if he didn’t get his way on pet proposals on potties and property taxes. The House versions of both were quite different from the Senate’s; the Senate never moved on legislation that would keep a handful of state agencies running for the next two years, including the Texas Medical Board.

Ever since the Legislature ended its regular session on Monday — and, to be honest, well before then — speculation about what’s next has kept the gossips and speculators busy.

Will Abbott call a special session? When would he want the Legislature to return? What issues will the governor, who has sole say over the agenda, include if he does call a session?

Nobody but Gregory Wayne Abbott can answer those questions with authority. He’s holding his cards close. “It’s premature to say what, if anything, will be on a special session call,” he said Wednesday at a bill-signing ceremony. “As soon as I make that decision, I will let you know.”

He’s got some time before those state agencies die and abundant reasons to wait. The acrimonious regular session ended Monday with an angry near-brawl in the House. The speaker and the lieutenant governor are openly sniping at each other for things done and things left undone during the past 20 weeks. And the House and Senate are no closer today than they were a week ago to compromises on local property tax restraints and restrooms.

Calling a session without some preliminary conversation and progress on those things would be asking for a protracted, attention-getting political quarrel.

A quick session relatively soon on the agency expirations alone might be relatively easy to pull off, but the governor would have to fend off questions from conservatives inside and outside government who want other, more provocative items on the agenda. A session on the other issues would be tough even if lawmakers hadn’t already had enough of one another for a while.

It would be so much easier to just tell the executive branch of the government to do whatever it is the government’s chief executive wants to do. If only Texas law allowed it.

It’s hard to imagine a female Legislature devolving into a parking lot rumble like the one that embarrassed Texas nationally this week. The ruckus in the House punctuated what many lawmakers have called a notably ugly session.

The state's top leaders couldn't close a session-ending deal over the final weekend, giving advocates of bathroom and property tax legislation — if the governor allows it — another chance.

The last Saturday of the legislative session — a day combining long, boring periods of inactivity with high levels of drama. In other words: perfect for a wandering mind.

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